Cover

Half title

Title

Copyright

Contents

Contributors

Figure and tables

Foreword

Acknowledgements

Abbreviations

Table of Cases

Table of legislation

Introduction: theoretical and comparative perspectives on not-for-profit law

Part I Politics

1 Philanthropy’s function: a neoclassical reconsideration

Introduction: from basic rationales to relative merits (and back)

The need to measure philanthropy’s performance: multiple comparisons, dual perspectives

Multiple comparisons

Dual perspectives

Back to the basic question

The standard model of philanthropy’s function: supplementing the market and the state

The ambiguous position of the household sector

The subordination of the philanthropic sector

The implicit assumptions of the standard model’s functionalist approach

Synthesizing classical norms and the standard model: towards a neoclassical account of philanthropy

Conclusion: philanthropy as the market’s servant or society as philanthropy’s school?

2 Archimedes, Aid/Watch, constitutional levers and where we now stand

Introduction

Aid/Watch

Aid/Watch: who are they and what did they do?

Legal background

The political objects doctrine

The implied freedom of political communication

Implied freedoms trump the political objects doctrine in Australia

Aid/Watch and traditional charity law analysis - what did the majority decide?

The law must change and the relevance of the preamble

Public benefit

What is the status of organisations like Aid/Watch under the Australian Constitution?

Can political parties be charitable?

Limiting public benefit: what guidance does Aid/Watch give?

The relevance of revenue concessions

The impact of the Charities Act 2013 on this analysis

Interim conclusion

Where we now stand

Changing the law and the relevance of the preamble

Public benefit

What is the status of political parties and organisations like Aid/Watch in Australia?

Expanding the boundaries of charity to include political parties

Limiting public benefit to exclude organisations subversive of democracy

The relevance of revenue concessions

Conclusion

3 Dilemmas in regulating electoral speech of non-profit organisations

Introduction

US and Australian non-profit sectors - structural commonalities and regulatory parallels

IRC § 501(c)(3) organisations

IRC § 501(c)(4)-(c)(6) organisations

IRC § 527 political organisations

Disclosures by §§ 501(c)(3), 501(c)(4)-(c)(6) and 527 organisations

Disclosures required under the IRC

Disclosures required under the Federal Election Campaign Act

Insights: to Australia with love from the United States

The value of corporate and organisational electoral speech

The impracticality of distinguishing ‘express advocacy’ from ‘issue advocacy’

The ‘corrupting’ influence of organisational wealth

Avoiding vague and ambiguous regulatory guidance

Avoiding inconsistent regulation by multiple agencies

The importance of effective, timely, and public disclosures

Conclusion

Part II Charity

4 Charity law: ‘no magic in words’?

Preamble

Poverty

Education

Religion

Other purposes beneficial to the community

Constraints

The ‘public’

‘Public’ benefit versus ‘private’ profit

‘Public benefit’ versus private enjoyment

Charity distinguished from government

Charity distinguished from politics

Inquiry into ‘benefit’

Presumption of benefit

English statutory initiative - no presumption of ‘benefit’

Elsewhere - ‘chicken or egg’?

Pressures to expand charity

Pressure of precedent

Pressure from governmental trends

Pressure from fiscal privileges

Epilogue

Postscript

5 The role of fiscal considerations in the judicial interpretation of charity

Introduction

Fiscal considerations as a determinant of the meaning of charity

Fiscal considerations as a source of distortion in the law of charity

Conclusion

6 Charities Act 2011: dog’s breakfast or dream come true?

Introduction

Twenty-first century charity law reform

Overview of the Charities Act 2011 and its problems

Theme and title of the chapter

Independent Schools Council

A compromise decision

Main findings and reactions

Advancement of religion

The Gnostic Centre

The Druid Network

Preston Down Trust

Campaigning, advocacy and politics

History of the campaigning issue

Aid/Watch

Need for legislation

Review of registration of think tanks that claim to be educational

Future of the Charity Commission

Future of the Tribunal

Envoi

7 Convergence and divergence with the common law: the public benefit test and charities for indigenous peoples

Introduction

Indigenous Australians and the public benefit test

The benefit must be for the public or a sufficient section of the public

The effect on Indigenous Australians

The New Zealand experience

The income tax exemption for New Zealand charities

Subsequent New Zealand judicial criticism of the public benefit test

The ‘public benefit’ test and Maori land

New Zealand legislative change to the ‘public benefit’ test

Decisions of the New Zealand Charities Commission

Reform of Australian charity law for indigenous peoples

Conclusion

8 The history and future of the definition of charity in Australia

Introduction

The ‘definition’ of charity: what it is and why it matters

History of definitional reform

Why reform was needed

Views on the scope of charity

Types of reform proposals

The road to a statutory definition

The Consultation Paper

The Exposure Draft

The Charities Bill (and Act) 2013

The future of the definition

Part III Taxation

9 The tax treatment of charitable contributions in a personal income tax: lessons from theory and the Canadian experience

Introduction

Rationales for tax recognition and implications for tax design

Base measurement

Subsidy

Encouraging or rewarding charitable giving

Subsidising charitable activities

Recent Canadian experience

Conversion of deduction to credit

Capital gains exemptions on gifts of property and increased income-related ceilings

Conclusion

10 The boundaries of charity and tax

Introduction

The commercialisation of charity

Commercial activities, charitable purposes and tax

The Australian proposal to tax unrelated commercial activities

The globalisation of charity

Charitable activity abroad

Donations for activities abroad

Proposal to tighten the ‘in Australia’ restrictions

What happens when transnational boundaries to charity disappear?

International relief, aid and environmental charities

Reframing the debate about the state, the market and charity

11 Recent developments in charity taxation in the United Kingdom: the law gives and the law takes away

Introduction

The law giving and the law taking away

The new definition of charity for tax purposes: the law taking away, because (European) law gives

Changes to Gift Aid

Background

Small charitable donations: the law giving?

Substantial donor rules: the law taking away (now replaced but)

Proposed cap on Gift Aid relief: the law nearly taking away

Issues raised by the proposed cap on tax relief

Charitable legacies: the law giving

Inter vivos gifts of pre-eminent objects to the nation (not to charity): the law giving

Lifetime legacies: the law should consider giving

Conclusion

12 Not-for-profit tax reform in Australia: opportunities and challenges

Introduction

A theoretical framework for not-for-profit policy development12

Identifying problems to be addressed by policy reforms

Lack of consistent policy and ad hoc development

Complexity and inconsistent treatment

Concessions open to abuse

Opportunities and challenges in achieving reform

Some high-level approaches to reform

Conclusion

Part IV Regulation

13 The fault line of charity

Introduction

The Independent Schools Council case

Charity and its regulatory consequences

Trust and organised civil society

Lack of resources and civil society

The fault line

14 Three challenges in charity regulation: the case of England and Wales

Introduction

The first challenge: the transition from ex post to ex ante regulation

Ex ante and ex post approaches

The transition from ex post to ex ante regulation under the Charities Act 2006

Problems with ex ante strategies under the Charities Act 2006

The second challenge: undesirable behaviour in response to regulation

Lessons from utility regulation

Applying the lessons to charity regulation in England and Wales

The third challenge: clarifying the regulator’s mandate

The importance of clarity of mandate

The clarity of the Charity Commission’s mandate

Conclusion

15 Appealing the regulator: experience from the Charity Tribunal for England and Wales

Introduction

What is the Charity Tribunal and how does it work?

The policy rationale for the creation of the Charity Tribunal for England and Wales (now the First-tier Tribunal (Charity))

Has the Tribunal been able to meet the objectives set for it?

The nature of the Charity and First-tier Tribunal’s work since its inception in 2008

Statutory inquiries

Regulatory issues

Registration

References

The relationship between the Charity Tribunal, the Charity Commission and the charity sector

What are the differences for charities in litigating in the Charity Tribunal rather than in the High Court?

What are the potential areas for reform of the Tribunal following the review of its remit and the report to Parliament?

16 Are we there yet?

Introduction

Where is the destination?

Non-profit enterprise start up

Legal entity

Fundraising

Commonwealth taxation

Other requirements

ACNC charity registration

Fundraising

Grant paperwork reduction

Progress since establishment of the ACNC

Proportionate regulation

Problems remain for small incorporated associations

Conclusion

Index